Plaintiff Jack S. Noback, of Montclair, N.J., now or formerly a patient in the Essex County Hospital at Overbrook, by his guardian ad litem , Marion B. Noback, prosecutes this action against the Town of Montclair, and against Canio Russo, a police officer of that town, for an alleged atrocious assault and battery committed upon him by the defendant police officer on September 24, 1951 by shooting him in the back with a 38-caliber revolver and by striking him in the back and on the head with the revolver and for false arrest and false imprisonment.
On motion, summary judgment was entered against the plaintiff and in favor of the Town of Montclair on June 15, 1954.
Plaintiff now moves under R.R. 4:58 for a summary judgment against the individual defendant Russo "* * * as to his liability, leaving damages as the only issue to be tried. The plaintiff will rely upon the pleadings filed in this cause, the depositions heretofore taken, and the pretrial order."
In the first count of the complaint, plaintiff charges that on September 24, 1951 the defendant Russo did commit an unlawful, atrocious assault and battery upon him by shooting him in the back with a revolver and by striking him in the back and on the head with a revolver, by reason whereof he was grievously wounded and suffered great physical and mental pain and was forced to incur large expenses for medical, hospital and nursing services, and that by reason of his wounds he has been disabled from earning a livelihood. And plaintiff further charges the defendant Russo on the date mentioned with false arrest and false imprisonment. However, at the argument on this motion plaintiff waived all claims for false arrest and for false imprisonment and relies only on the charge of atrocious assault and battery.
Defendant's answer first denies the charges generally and by way of separate defense pleads that the defendant Russo, a police officer of the Town of Montclair, observed the plaintiff in the commission of a violation of law; that he attempted to arrest the plaintiff, but the plaintiff forcibly resisted; and
that after having been arrested, the plaintiff forcibly broke away from the officer in an attempt to escape, whereupon the defendant officer was compelled to and did use force to apprehend and prevent the escape of the plaintiff, "using no more force than was reasonably necessary to apprehend and to prevent the escape of the plaintiff from arrest under the circumstances there present."
The pretrial order in this case, bearing date May 24, 1954, contains no admissions of value, but does contain a recital of the defendant's contention, as follows:
"that he observed the plaintiff in the commission of a violation of the laws of the State of New Jersey, viz. annoying and disturbing a young girl on the public sidewalk as a disorderly person by statute and by Town ordinance; and that in the course of arresting the plaintiff, the plaintiff forcibly resisted arrest and after having been arrested forcibly broke away in an attempt to escape, whereupon Russo was compelled to use such force as was necessary to apprehend and prevent the plaintiff's escape from the arrest.
Factually, Russo contends that on the day in question he had seen the plaintiff act in a suspicious manner and later had seen him stalking a girl who was afraid of the plaintiff and who was backing up. Russo went up to the plaintiff, who had a wild look in his eyes, and the girl and went to arrest him and actually grabbed him by his right arm placing him under arrest, but he broke away. Russo caught up with him and again grabbed him, but again he broke away and ran down the street escaping. After firing four warning shots and yelling to the plaintiff to stop, Russo was compelled to fire at his legs to prevent his escaping. The sixth bullet shot struck the plaintiff, but even at that time, although he was knocked down, he did not stop but continued on and Russo then overtook him and had a difficult time subduing him. At no time did Russo strike the plaintiff."
Deposition of the defendant Russo was taken on March 25, 1954, and at that time he testified under oath concerning the subject matter of this suit substantially as follows:
That he had been a police officer in the Town of Montclair for some 13 years; that about the hour of 7:15 to 7:30 A.M. on September 24, 1951 he was on duty and in uniform and near the intersection of Watchung and North Fullerton Avenues in the Town of Montclair, about 25 feet off the northwest corner of the intersection, he noticed the plaintiff and a young girl of about 16 years of age on the [33 NJSuper Page 424] sidewalk; that he could see the girl was afraid and was backing up and that she had a startled look on her face; that the plaintiff was advancing toward the girl and she was backing up; the defendant officer pulled his motorcycle to the side of the road opposite where the plaintiff and the girl were on the sidewalk, got off his machine and walked over to the plaintiff and said, "Come here. I want to talk with you"; the plaintiff walked away from the officer, saying "Leave me alone. I have a right to talk to any girl I please"; the officer then caught up with the plaintiff and grabbed the plaintiff by the right arm, and the plaintiff pulled away from the officer and crossed the street with the officer after him and the officer grabbed him by the arm again on the opposite side of the street and the plaintiff again broke away from the officer and ran down the sidewalk on the north side of Watchung Avenue; the officer took after the plaintiff and was running at full speed, but the plaintiff was getting away; the officer shouted "Stop, stop," but plaintiff kept on going; the officer then removed his pistol from its holster and again called out "Stop, stop, or I'll shoot." The plaintiff failed to stop but kept running and the officer fired his revolver four times, shooting into the ground; the plaintiff still kept running and the officer aimed his fifth shot at the plaintiff's legs but missed his mark and the sixth shot the officer again aimed at the plaintiff and the bullet hit the plaintiff and the plaintiff fell to the ground; after being knocked down by the bullet, the plaintiff again arose and the officer had a terrific struggle in subduing him and was assisted by a citizen in bringing the plaintiff ...